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Speech  in  the  C 
Conf  Pam  12mo  #377 


SPEECH 


OF 


HON.  WILLIAM  A.  GRAHAM, 


0»F    ORANGE, 


In  the  Convention  of  North- Carolina^  Deo.  7ihy  1861,  on  th- 
Ordinance  concerning  Test  Oaths  and  Sedition. 


KALEIGH : 

W.    W.    HOLDEN,     PEINTES 
1862. 


SPEECH 


Mr.  President: — When  the  original  ordinance  pertaining^ 
to  this  subject  came  up  for  consideration  several  days  since,  I 
took  occasion  to  express  my  decided  aversion  to  test  oaths,  as 
antiquated  instruments  of  oppression  and  despotism,  nnsuited 
to  an  enlightened  age,  and  wholly  at  war  with  all  our  ideas  of 
free  republican  government.  I  was  then  of  opinion  that  an 
indelinite  postponement  was  the  proper  disposition  to  make  of 
the  entire  topic.  At  the  suggestion  of  others,  it  was  referred 
to  a  committee,  of  which,  under  your  appointment,  I  had  the 
honor  to  be  a  member.  When  that  committee  assembled, 
and  the  honorable  Chairman,  Mr.  Biggs,  produced  and  read 
from  an  old  act  of  1777,  as  contained' in  Iredeirs  Revisal,  the 
two  first  sections  of  the  ordinance  reported  by  him,  without 
ranch  reflection  I  gave  that  part  of  the  ordinance  my  concur- 
rence, and  consented  that  it  might  be  reported  to  the  Conven- 
tion. But,  in  committee,  as  in  this  House,  everywhere  and 
under  all  circumstances,  I  have  been  unalterably  opposed  to 
a  test  oath,  and  especially  to  that  most  objectionable  form  of 
such  an  oath  contained  in  the  report  of  the  committee,  and 
proposed  to  be  enacted  into  a  law  of  the  State.  And  upon  a 
little  more  consideration,  I  am  satisfied  that  no  enactment  by 
this  Convention  is  required  in  regard  to  sedition  ;  I  therefore, 
now  submit  the  motion,  that  in  fhe  outset  I  deemed  appropri- 
ate, that  the  further  consideration  of  the  subject  be  indefi- 
nitely postponed.  I  esteem  it  proper  in  this  connection  further 
to  state,  that  the  eloquent,  argumentative  report  of  the  Chair- 
man of  the  committee,  so  full  of  flery  zeal  and  patriotism, 
was  never  heard  of  by  me,  until  it  was  read  by  the  Chairman 
at  your  desk.  If  it  was  ever  read  to  the  committee,  it  was  on 
some  occasion  other  than  the  two  meetings  I  was  summoned 
to  attend,  and  I  received  no  intimation 'that  "such  a  paper 
might  be  expected.  This  I  mention,  not  in  the  way  of  com- 
plaint, but  to  acquit  myself  of  any  neglect  of  duty  in  failing 
to  present  a  counter-report  against  a  document,  which,  with 
all  respect  I  must  say,  inculcates  doctrines  most  intolei-ant  and 
tyrannical. 

^  Mr.  President,  the  original  proposition  was  liable  to  objec- 
tions enough.  I  endeavored  to  point  ont  these  in  the  former 
discussion.     It  allowed   a  single  magistrate  upon  complaint 


made,  to  bring  before  himself  any  citizen  accused  of  disloy- 
alty, and  then  to  determine,  in  the  first  place,  what  constituted 
disloyalty — second,  whether  the  person  charged  was  guilty — 
and  thirdly,  to  impose  on  him  a  sentence  to  take  an  oath  of 
allegiance  to  the  State,  or  be  expelled  from  the  conntrv. 
Revolting  to  our  conceptions"  of  justice  and  freedom  as  x^as 
this  concentration  of  power  in  the  hands  of  a  magistrate,  it 
yet  retained  something  of  the  manly  spirit  of  the  common 
law,  and  of  the  elementary  principles  of  liberty  embodied  in 
our  bill  of  rights.  There  was  to  be  a  responsible  prosecutor — 
persons  arraigned  and  accused  were  to  be  allowed  the  custo- 
mary privilege  of  defence,  with  the  right  of  course,  to  confront 
the  accusers  and  witnesses,  and,  above  all,  to  be  protected 
against  being  compelled  to  irive  evidence  against  themselves. 
But  the  substitute  of  the  committee  proposes  what?  Why, 
to  institute  a  proceeding  in  the  nature  of  a  criminal  prosecu- 
tion against  every  tree  citizen;  yea,  sir,  against  every  male 
inhabitant  of  the  State,  from  tlve  beardless  youth  of  sixteen 
years,  live  years  in  advance  of  his  admission  to  the  rights  of 
a  citizen,  to  tlii  aged  patriarch  of  one  bundred  and  sixteen, 
tottering  on  his  staff,  with  one  foot  in  the  grave,  by  which 
they  are  each  and  all  to  be  attainted  of  treason,  and  banished 
from  their  homes  and  country;  or,  if  graciously  permitted  to 
remain,  to  be  deprived  of  their  rights  as  freemen,  and  reduced 
to  a  degraded  caste — unless  and  until  they  shall  purge  them- 
selves oi'  this  foul  crime,  by  taking  the  oath  of  allegiance, 
military  fealty,  and  abjuration,  compounded  and  prescribed  in 
the  ordinance  before  us.  This  is  the  obvious  effect  of  the 
provisions  relating  to  a  test  oath,  w^hen  analyzed  and  brought 
to  a  plain  interpretatrion.  Your  magistrates  are  to  be  sent  out 
into  all  the  land,  from  the  shores  of  the  ocean  to  the  summits 
of  the  Smoky  Mountains,  and  they  are  to  beset  every  man 
and  bo}^  above  the  prescribed  age,  with  a  test  oath  in  the  left 
hand,  and  a  sentence  of  banishment  or  degradation  in  the 
right.  In  this  dilemma,  ihere  is  to  be  no  means  of  escape, 
nor  any  more  freedom  of  action  than  when  the  highwayman 
with  his  pistol  at  your  breast,  offers  the  alternatives,  ''your 
money  or  your  life."  Observe,  s-ir,  there  is  to  be  no  inquiry 
as  to  guilt,  as  upon  accusation  and  arraignment,  but  the  party 
is  to  be  placed  by  law  in  a  state  of  condemnation — his  guilt 
is  to  be  assumed,  until  he  shall  exonerate  himself  by  taking 
the  oath  ;  and  upon  his  refusal  so  to  do,  his  guilt  being  put 
beyond  question,  the  penalty  annexed  is — what  ?  Not  a  dis- 
qualificarion  for  holding  office — not  a  forfeiture  of  a  part  or 
the  whole  of  his  goods  and  lands,  but  a  forfeiture  of  his  birth- 
right as  a  citizen  of  North-Carolina. 


Mr.  President,  if  this  Convention,  like  a  French  national 
Assembly,  were  to  declare  itself  in  permanent  session,  and 
arrogate   all   the  powers  of  government,  it  wonld  give  no 
greater  shock  to  public  sentiment,  and  make  no  moredanger- 
ous  stride  towards  despotism,  than  wonld  be  effected  by  the 
passage  of  this  ordinance.     It  is  true,  there  have  been  confided 
to  us  extensive  powers,  but  they  are  delegated  powers,  and 
must  be  exercised  not  whimsically  or  tyrannically,  but  in  con- 
formity with  those  elementary  principles  of  freedom  and  justice, 
on  which  are  founded  our  American  system  of  Constitutional 
government.     If  these  are  violated,  it  is  usurpation  on  our  part, 
an  abuse  of  power  equal  to  usurpation,  and  for  want  of  o  1  cr 
remedy,  it  may  expect  to  provoke  that  old  and  primary  one 
of  resistance  on  the  part  of  the  people.     AVhen  elected  to  these 
seats  in  the  month  of  May  last,  we  were  not  understood  to  be 
placed  above,  or  out  of  the  reach  of  the  well  known  respon- 
sibilities of  the  representative  to  the  constituent  body.     Our 
countrymen  supposed  that  they  retained  the  right  to  judge  of 
and  canvass  our  whole  proceedings  as  freely  as  they  were 
accustomed  to  do  as  to  those  of  other  representatives ;  and 
that  if  dissatisiied  with  what  we  had  done,  a  sufficient  majority, 
by  some  process  or  other,  might  set  it  aside,  and  afford  redress. 
They  further  supposed,  that,  although  we  had  power  to  dis- 
franchise men,  and  change  the  qualifications  for  the  right  of 
suffrage,  yet  that  no  new  test  of  citizenship  would  be  applied 
to  those  born  upon  the  soil,  of  parents  who  had  achieved  the 
independence  of  the  country,  and  established  the  free  institu- 
tions, whose  essential  features  no  one  desires  to  change.  What, 
then,  will  be  their  surprise,  not  to  say  indignation,  if  this 
ordinance  shall  pass,  and  they  are  told  that  no  man  can  ever 
vote  again — nay,  that  no  man  will  be  allowed  to  remain  in 
the  State,  but  every  one  will  be  exiled  who  does  not  take  an 
oath   that  the  Convention   has  ordained?     Sir,  every  North 
Carolinian   rejoices   in  the   idea,  that,  like  St.  Paul,  he  was 
free-born.     And,  although  this  freedom  was  purchased  at  a 
great  price,  no  less  than  the  blood  of  his  fathers  shed  in  every 
battle-Held  of   American  independence,  from  the  shores  of 
the  Hudson  to  the  everglades  of  Florida,  it  came  to  him  as  an 
inheritance,  the  more  valued,  because  of  its  association  with* 
his  ancestral  pride  and  glory.    H  is  right  to  dwell  in  and  breathe 
the  puie  air  of  the  land  of  his  birth;  his  right  to  participate 
in  the  election  of  rulers,  and,  if  it  suit  his  inclination  and  the 
will  of  a  majority,  to  be  himself  invested  with  a  portion  of 
the  powers  of  the  republic,  he  will  suffer  neither  to  be  taken 
away  nor  trifled  with.     He  did  not  acquire  them  by  an  oath, 
and  he  will  spurn  any  oath  offered  to  him  as  a  condition  of 


6 

their  continued  enjoyment.  It  is  one  of  those  bhmderg  char- 
acterized by  Talleyrand  as  worse  than  a  crime,  for  statesmen  by 
their  measures  to  encroach  npon  and  offend  so  sacred  a  feeling 
as  the  pride  of  nativity — tlie  self-respect  and  manhood  of  a 
high-spirited,  free-born  American.  Sir,  the  people  when 
presented  with  this  oath,  will  turn  upon  this  .Convention,  and 
inquire  "  upon  what  food  have  these  our  C^sars,"  at  "Raleigh, 
*'  fed,  that  1  hey  have  grown  so  great  ?"  We  thought  they  were 
our  servants  ;  how  have  they  become  our  masters  ?  We  had 
a.  free  election  according  to- the  usages  and  Constitution  of 
our  fathers  when  we  chose  them  as  onr  representatives ;  by 
what  legerdemain,  by  what  audacity,  do  they  declare  that  we 
shall  never  vote  again,  no  nor  inhabit  our  present  homes,  but 
shall  be  driven  out  as  fngitires  and  vagabonds,  unless  we  take 
an  oath  that  they  have  dictated  ?  It  will  be  no  answer  to  tell 
them,  as  they  are  told  in  substance  in  the  report  of  the  com- 
Miittee,  and  the  speech  of  the  Chairman,  Mr.  Biggs,  in  support 
of  the  ordinance,  that  the  oath  is  but  an  evidence  of  patriot- 
ism, and  no  one  but  a  traitor  need  have  any  hesitation  in  taking 
it.  The  prompt  response  would  be,  We  care  but  little  for  the 
thing  proposed  to  be  sworn  to  ;  the  objection  is  to  being  com- 
pelled to  swear  at  all,  as  a  condition  to  the  enjoyment  of  onr 
inborn  rights  of  property  and  citizenship.  We  render  to  the 
government  our  loyalty  and  duty,  as  we  cherish  and  support 
our  wives  and  children,  and  perform  other  obligations  as 
members  of  society  ;  but  we  will  take  no  oaths  upon  compul- 
sion, to  bind  us  to  those  duties,  and  least  of  all,  an  oath  that 
is  accompanied  with  the  polite  alternatives  of  exile  or  degra- 
dation. Nor  will  they  be  any  better  satisfied  with  that  other 
idea  contained  in  the  report,  and  which  seems  to  be  the  favorite 
explanation  of  the  ordina'ice,  that  it  is  a  mere  measure  of 
detective  police,  not  intended  to  do  any  harm  to  patriotic  men, 
but  to  discover  and  expel  disloyal  ones.  This  assumes  that  itr 
is  legitimate  and  proper  to  hunt  through  the  consciences  of 
all  good  men  by  an  oath  of  discovery,  in  order  to  ferret  out 
the'bad.  By  parity  of  reasoning,  if  a  treasonable  correspond- 
ence were  suspected  in  any  county  or  neighborhood,  every 
man  should  be  required  to  open  his  desk,  and  submit  his 
private  correspondence  and  papers  to  the  inspection  of  a 
magistrate.  This  certainly  would  be  no  more  harsh  than  to 
ask  a  discovery  of  his  conscience.  Or  to  illustrate  it  more 
strikingly,  it  is  in  principle,  the  same  as  in  case  a  theft  had 
been  committed,  in  order  to  be  sure  of  visiting  punishment 
on  the  real  offender,  you  should  require  every  inhabitant  of 
the  vicinage  to  receive  forty  stripes  save  one.  Your  people 
will  say  to  you,  point  out  the  guilty  or  suspected  persons,  take 


tlie  warrant  of  the  law  in  your  hands,  summon  us  of  the  posse 
oomitatus  if  necessary,  and  we  are  ready  to  render  our  duty 
anywhere ;  but  our  homes- and  consciences  are  not  to  be  made 
hunting  grounds  for  traitors  and  felons,  and  if  we  could  submit 
to  make  them  such,  we  should  not  feel  ourselves  much  elevated 
above  either. 

But,  Sir,  the  jealous  and  sagacious  spirit  of  liberty  which 
pervades  our  people,  will  discover  in  this  process  of  a  test  oath 
something  more  than  an  usurpation  or  abuse  of  power  on  our 
part,  and  an  instrument  of  tyranny,  oppression  and  degrada- 
tion upon  the  citizen.  They  will  perceive  at  a  glance,  that  no 
more  effectual  contrivance  could  be  devised  to  enable  a  faction 
in  the  possession  of  temporary  power,  to  convert  the  govern- 
ment into  an  oligarchy,  expel  their  opponents  from  the  State, 
and  riot  upon  the  substance  they  had  left.  Such  a  faction  need 
only  to  enact  a  test  oath,  for  patriotic  objects  of  course,  but 
to  i{lke  care  to  infuse  into  it  such  ingi-edients  as  they  knew 
would  be  offensive  and  inadmissable  by  its  opponents,  and 
declare  that  every  man  who  refused  it,  should  be  banished 
from  the  State,  or  lose  liis  rights  as  a  citizen  with  forfeiture  of 
all  his  possessions.  Carry  it  out  with  the  high  hand  of  force, 
and  it  makes  no  difference  whether  a  majority*  or  minority, 
whether  one  in  fifty  will  take  the  oath  ;  the  few  who  do  will 
have  tlie  whole  government  in  their  hands,  and  the  spoils  of 
the  exiles  -besides.  Our  theory  has  been,  that  a  majority 
within  the  limitations  of  our  written  Constitutions,  can  mould 
the  government  at  will — can  make  revolutions  and  unmake 
them  ;  but  this  is  an  invention  by  which  that  tl^eory  is  sub- 
verted, and  those  who  have  power  may  keep  it  till  the  end  of 
time.  Whenever  they  are  about  to  lose  favor  with  the  con- 
stituent body,  they  have  but  to  prescribe  a  new  oj^th,  and  that 
no  man  shall  vote  who  refuses  it,  and  they  will  never  fail  in 
an  election.  Since  the  commencement  of  the  present  revo- 
lution and  the  adoption  of  the  new  Constitution  of  tlie  Con- 
federate States,  there  has  been  much  speculation  as  to  the 
facility  with  which  it  may  be  abrogated  by  any  State,  who 
may  become  dissatisfied  with  its  operation  or  administi-ation. 
If  there  be  that  virtue  in  test  oatlis  which  this  ordinance 
supposes,  it  may  be  perpetuated  indefinitely.  If  there  be  a 
majority  favorable  to  it  in  the  Legislature,  aa  there  will  be  of 
course  in  the  outset,  whenever  they  suspect  opposition  or 
lukewarraness,  they  may  enact  an  oath  to  suit  the  case,  and 
banish  those  who  refuse  it  belore  the  next  election.  I  speak 
as  if  there  were  no  constitutional  impediments  to  snch  a 
course,  as  this  ordinance  considers  that  there  are  none,  or 
proposes  to  override  them,  if  they  exist 


Mr.  President,  the  very  mention  of  a  test  oath  carries  us 
back  to  the  "bigot  monarciis  and  the  butcher  priests"  of  the 
days  of  the  Tiidors  and  Stuarts,  and  beyond  these,  to  the 
Inquisition  itself.  It  is  a  device  of  power  in  Church  and  in 
State,  to  perpetuate  itself  by  force,  against  free  discussion  and 
inquiry,  and  in  defiance  of  what  in  more  liberal  times  we  call 
public  sentiment.  In  direct  contravention  of  that  most 
esvsential  principle  of  criminal  justice,  that  no  man  shall  be 
compelled  to  give  evidence  against  himself,  it  requires  of  its 
victim  the  confession  of  a  creed,  and  his  failure  or  refusal  it 
takes  as  conclusive  evidence  of  his  guilt,  and  inflicts  upon 
him  torturous  penalties  or  forfeitures,  such  as,  if  they  will  not 
cure  him  of  his  heresy,  may  deter  others  in  like  cases  offend- 
ing. Whether  the  creed  be  religious  or  political,  or  the  remedy 
be  the  thumbscrew,  the  iron  boot,  the  break-wheel  or  the 
rack,  or  whether  it  be  banishment,  deprivation  of  privileg-e, 
degradation,  or  forfeiture  of  estate,  there  is  no  difierence  in 
the  odiousness  of  the  principle.  Forsaking  every  vestige  of 
Christian  charity  and  toleration,  it  assumes  to  control  by  force 
that  conscience,  which  the  God  who  gave  it  designed  to  be 
free,  and  avows  its  purpose  to  drive  men  to  perjury  or  self- 
accusation.  I  have  somewhere  seen  or  read  of  a  picture  of  a 
trembling  prisoner  of  the  Inquisition,  who  when  called  to  take 
the  religious  test  of  that  inexorable  tribunal,  replies:  *'I 
cannot;  I'll  be  damned,  if  I  do."  To  which  the  stern  Inquis- 
itor replies :  "  You'll  be  damned,  if  you  don't."  It  will  require 
no  stretch  of  imagination  to  picture  your  justice,  under  this 
ordinance,  with  his  prisoner  before  him,  refusing  the  oath, 
with  "  I'll  be  perjured,  forsworn,  if  I  take  it ;"  and  the  equally 
stern  reply,  "  You'll  be  banished,  if  you  don't  take  it." 

The  history  of  our  mother  country  affords  us  some  instruc- 
tion on  the  subject  of  tests,  and  the  persecutions  that  attended 
them,  religious  and  political.  In  the  Catholic  ascendehcy, 
Protestants  were  the  victims ;  in  the  Protestant  reigns,  Cath- 
olics suffered  in  turn  ;  and  it  is  a  reproach  to  that  enlightened 
and  Christian  nation,  even  that  down  within  our  own  memories, 
no  man  could  hold  even  a  military  office  until  he  took  a  test  oath 
against  Catholicism,  and  received  the  sacraments  according  to 
the  rites  of  the  Church  of  England.  This  last  vestige  of 
intolerance  and  bigotry  in  that  country  was  swept  away  under 
the  enlightened  counsels  of  Earl  Gray,  the  Duke  of  Welling- 
ton and  Sir  Robert  Peel,  not  more  than  thirty  years  ago. 

But  in  the  worst  and  most  intolerant  times,  neither  in  Eng-,^ 
land  nor  in  any  civilized  nation  of  which  I  have  recollection,  , 
was  there  ever  such  an  experiment  made  as  is  proposed  to  be 
made  here,  of  prescribing  a  test,  religious  or  political,  and 


0! 
9 

running  a  muck  with  it  against  the  whole  people,  to  see  if 
perchance,  some  victim  may  not  be  found  for  banishment  or 
deffradarion. 

In  this  country  we  have  known  but  little  of  test  oaths, 
except  as  we  have  read  of  theih  under  more  arbitrary  gov- 
ernments. The  Legislature  of  Virginia,  more  than  fifty  years 
ago,  in  a  laudable  desire  to  suppress  the  practice  of  duellings 
directed  an  oath  to  be  tak3n  by  certain  public  functionaries, 
and  among  others  the  advocates  in  her  courts  of  justice,  that 
they  would  not  engage  in  any  duel.  Mr.  Benjamin  Watkins 
Leigh,  since  known  to  the  country  as  one  of  her  most  distin- 
guished lawyers  and  statesmen,  was  then  at  the  bar,  and  the 
court  of  appeals  having  decided  that  the  oath  must  be  taken, 
Mr.  Leigh  requested  time  to  consider  the  question  of  the 
power  ot  the  Legislature  to  impose  such  an  oath.  And  at  a 
subsequent  day  he  submitted  an  argument  which  satisfied  the 
court  that  the  power  did  not  exist,  and  they  unhesitatingly 
reversed  the  former  decision,  which  Chief  Justice  Roane 
pronounced  to  be  an  "off  hand  and  erroneous"  one;  an 
example  of  candor  and  fairness  of  mind  which  I  beg  to  com- 
mend to  all  who  may  have  inclined  in  favor  of  this  ordinance. 
In  his  argument,  Mr.  Leigh  so  vividly  depicts  the  mischievous 
nature  of  test  oaths  as  the  "barbed  and  poisoned  weapons" 
of  despotic  power,  that  I  will  detain  the  Con  vention  by  reading 
a  few  sentences  from  it : 

"  If  the  words  of  the  Constitution,"  said  he,  "  were  doubt- 
ful, its  spirit  could  not  be  mistaken.  If  the  Legislature  might 
add  one  new  disqualification,  they  might  add  many  ;  multiply 
disabilities  without  end  ;  disqualify  whole  districts  or  classes 
of  men  by  personal  or  local  description  ;  make  an  academical 
degree,  or  even  a  previous  service  in  one  of  its  own  bodies,  a 
necessary  qualification  ;  and  thus  convert  the  government  into 
an  oligarchy.  If  this  tremendous  power  existed  at  all,  it  was 
boundless  and  uncontrollaldle  as  the  winds;  and  dissipated  at 
once  all  our  fond  notions  of  a  written  constitution,  late  the 
glory  of  American  politics.  These  test  laws,  particularly, 
were  the  first  weapons  young  oppression  would  learn  to 
handle ;  weapons  the  more  odious,  since,  though  barbed  and 
poisoned,  neither  strength  nor  courage  was  requisite  to  wield 
them.  Should  we  rely  on  public  virtue  to  keep  us  from  the 
use  and  extension  of  this  system  of  tests  ?  In  no  age,  nor 
clime,  nor  nation,  had  ever  virtue  wholly  swayed  human 
bosoms  and  actions;  man  was  universally  liable  to  be  trans- 
ported with  passion,  blinded  with  folly,  corrupted  with  vice  ; 
and  yet  more  with  power,  maddened  with  faction,  and  fired 
with  the  lust  of  domination ;  let  us  not  flatter  ourselves  that  ice 


10 

were  exempt  from  the  common  lot ;  and  although  the  wise 
exposition  of  the  bill  of  riglits,  bj  the  act  to  establish  reh'gious 
freedoQi,  might  for  a  time  secure  ns  from  a  -'eUglous  test,  a 
'political  one  was  certainly  a  possible,  perhaps  a  pi-obable,  and 
not  SQvj  remote  event.  Sir,  I  am  possessed  with  a  strange 
delusion  if  th(^  mry  law  in  ^w6<9^^c»?^  does  not  appoint  a  political 
test,  ]  fear  other  instances  might  be  recounted.  Such  are 
the  BEGINNINGS.     The  end  of  all  these  things  is  death." 

Sir,  this  oi'dinance  goes  be3^ond  the  apprehensions  of  Mr. 
Leigli,  and  does  apply  a  religious  test  to  a  considerable  portion 
of  our  population,  as  a  condition  of  their  being  allowed  to 
remain  citizens.  It  would  be  a  very  great  mistake  to  suppose, 
that  the  oath  which  it  prescribes,  was  an  oath  "  to  support  the 
Constitution  of  the  Confederate  States,"  the  only  oath  to  that 
government. required  by  its  Constitution  ;  or  that  it  was  the 
common  oath  of  allegiance  to  the  State  of  North-Carolina,  or 
both  of  these  together.     Let  us  read  it: 

'^  I,  A.  B.,  do  solemnly  swear,  (or  affirm,  as  the  case  may 
be,)  that  I  will  bear  faithful  and  true  allegiance  to  the  State 
of  I^orth  Carolina,  and  will  to  the  utmost  of  my  power,  sup- 
port, maintain  and  defend  the  independent  government  of 
the  Confederate  StateB  of  America,  against  the  goYerument 
of  the  United  States,  or  of  any  other  po^wer,  that  by  open  force 
or  otherwise,  shall  attempt  to  subvert  the  same.  I  do  hereby 
renounce  my  allegiance  to  the  government  of  the  United 
States,  and  will  support  and  defend  the  Constitution  of  the 
Confederate  States  of  America,  and  the  Constitution  of  this 
State,  not  inconsistent  with  the  Constitution  of  the  Confeder- 
ate States — so  help  me  God." 

Now,  Sir,,  the  requirement  of  this  afiirmation  to  be  taken 
by  the  denomination  called  Quakers,  is  as  effectual  an  act  of 
banishment  of  tkat  sect,  as  if  it  had  been  plainly  denounced 
in  the  ordinance.  And  the  same  may  be  said,  I  presume,  in 
relation  to  Menonists  and  Bankers,  though  I  have  less  knowh 
edge  of  them.  There  were  some  of  the  last  named  class  in 
the  county  of  Lincoln  during  my  boyhood ;  whether  they 
remain,  and  keep  up  their  peculiar  tenets,  I  am  not  informed. 
But  the  Quakei's  are  a  well  known  sect,  numbering  not  less 
than  ten  thousaud  persons  in  the  State — and  it  is  equally  well 
known  that  they  Vv'ill  not  engage  in  war,  and  are  conscien- 
tiously scrupulous  against  bearing  arms.  Our  laws,  from  the 
Revolution  downward  to  this  day,  have  respected  their  scru- 
ples, and  extended  to  them  the  charity  and  toleration  due  to 
the  sincerity  and  humility  of  their  profession.  This  ordinance 
wholly  disregards  their  peculiar  belief,  and  converts  every 
man  of  them  into  a  warrior  or  an  exile.    True,  they  ar« 


n 

allowed  to  affirm,  but  the  affirmation  is  equivalent  to  the  oath 
of  the  feudal  vassal  to  his  lord,  to  "  defend  him  with  life  and 
limb  and  terrene  honor."  It  is,  that  they  "  will  to  tl\e  utmost 
of  their powe7\  support,  maintain  and  «fe/^??cf  the  independent 
government  of  the  Confederate  States  of  America,  against 
the  United  States,  or  any  other  power,  that  by  open  force  or 
otherwiso  may  attempt  to  subvert  the  same,"  &c.  If  this  does 
not  include  military  defence,  it  is  difficult  to  find  language 
that  would.  It  is  so  well  known  that  the  ordinary  oath  to  tne 
State  im.pliea  defence  with  arms,  that  the  Quaker^  have  ever 
refused  to  atiirm  in  its  terms,  but  have  had  a  special  affirma- 
tion provided  for  them,  as  may  be  seen  in  the  present  Kevised 
Code,  and  in  all  former  editions  of  our  laws.  This  ordinance, 
therefore,  is  nothing  less  than  a  decree  of  banishment  to 
them.  Sir,  this  humble  denomination,  who  in  the  meekness 
and  charity  which  so  distinguished  their  Divine  Master,  yield 
precedence  to  none,  were  the  first  white  men  who  made  per- 
manent settlements  within  our  bordei's.  Scourged  and  buffeted 
by  Puritanism  in  New  England,  and  Prelacy  in  Virginia,  they 
found  no  rest  or  religions  freedom,  unt'l  they  had  put  the 
great  Dismal  Swamp  between  themselves  and  the  nearest  of 
their  persecutors.  In  the  dark  forests  of  its  Southern  border, 
they  obtained  a  toleration  from  the  savage  red  man  which  had 
been  denied  them  by  their  Anglo-American  brethren.  Thei-e 
they  opened  the  w  ildern ess,  reared  their  modest  dwelHngs, 
and  filled  the  land  with  the  monuments  of  civilization.  There, 
and  upon  the  upper  waters  of  the  Cape  Fear,  which  they 
subsequently  colonized,  their  posterity  has  remained- to  this 
day — a  quiet,  moral,  industrious,  thrifty  people,  dififeringfrom 
US  in  opinion  on  the  subject  of  slavery,  but  attempting  no 
subversion  of  the  institution — producing  abundantly  by  their 
labor,  paying  punctually  and  certainly  their  dues  to  the  gov- 
ernment, and  supporting  their  own  poor.  Sir,  upon  the 
expulsion  from  among  us  of  such  a  people,  the  civilized  world 
would  cry,  shame  ! 

But,  it  may  be  said  that  this  was  not  intended.  If  so,  it 
but  demonstrates  that  it  is  dangerous  for  freemen  to  take  liold 
of  the  weapons  of  despotism  and  brandish  them  about,  lest 
they  do  mischief  more  than  was  designed.  But  there  is  cer- 
tainly no  exception  of  Quakers  in  the  ordinance,  thougli  they 
are  excepted  and  specially  provided  for  in  the  act  of  Assembly, 
1777,  from  which  its  main  features  are  copied, — none  in  those 
amendments  which  the  Chairman  signified  his  intention  to 
move  ;  and  the  report  of  the  committee  declares  ''  there  can 
be  no  neutrals  in  the  struggle"  in  which  we  are  engaged. 

It  may  not  be  a  religions  test  to  others,  but,  Sir,  it  is  a  dls- 


12 

tnrbance  of,  and  interference  with  the  religious  sjentiraent  and 
domestic  repose  of  the  country,  not  to  be  justified,  unless 
called  for  by  some  most  urgent  necessity.  The  veteran  of 
the  Courthouse,  who  sees  every  breach  of  the  peace  and 
misdemeanor,  and  calculates  on  proving  his  attendance  as  a 
part  of  his  income,  may  regard  oaths  as  unmeaning  ceremo- 
nies; but  your  quiet  and  retired  citizen,  who,  except  when 
called  to  the  public  duty  of  a  juror,  or  to  prove  his  neighbor's 
^ill,  has  seldom  been  sworn  at  all,  looks  upon  them  in  the 
language  of  your  publip  statute,  as  "  being  most  solemn 
appeals  to  Almighty  God,  as  the  omniscient  witness  of  truth 
and  the  just  and  omnipotent  avenger  of  falsehood,"  and  takes 
them  not  without  a  feeling  of  awe.     Beyond  his  daily  prayer — 

*'  That  He  who  stills  the  raven's  clamorous  nest, 

And  decks  the  lilly  fair,  in  flowery  pride, 
Would  in  the  way  His  wisdom  sees  the  best. 

For  him,  and  for  his  little  ones  provide;" 

Beyond  this,  his  morning  and  evening  imploration,  repeated 
perhaps  with  unwonted  fervor  and  empliasis,  in  these  times  of 
difficulty  and  scarcity,  he  takes  not  his  Maker's  name.  He  is 
accustomed  to  vex  liis  ear  with  no  blasphemous,  unnecessary,, 
unhallowed  appeals.  When  you  invade  the  retirement  of 
8uch  a  man  by  domiciliary  visitation,  and  demand  from  him 
his  oath,  with  a  threat  of  banishment  branished  over  his  head, 
he  will  feel  as  would  the  pagan  whose  household  Gods  had 
been  rudely  jostled  from  their  seats.  He,  as  well  as  you,  Mr, 
President,  has  read  those  thrilling  words  in  which  Chatham 
has  engraven  on  our  memories  the  domestic  rights  of  our 
fathers  beyond  the  seas,  that  "  qy'qyj  Englishman's  house  is 
his  castle,  though  so  rude  and  humble  that  the  rains  and  the 
winds  of  heaven  may  beat  upon,  and  may  enter  it,  yet  the 
king  cannot  enter  it."  He  will  reflect  that  until  now  his  house 
has  been  equally  sacred  from  the  intrusion  of  government, 
and  his  conscience  unruffled  by  impertinent  interrogation  ; 
and  he  will  instinctively  inquire,  if  these  are  the  first  fruits 
of  the  new  order  of  things,  what  may  not  be  expected  in  the 
sequel  ?  And  in  spite  of  all  the  apologies  and  disclaimers  that 
your  magistrates  may  be  instructed  to  make,  he  can  sensibly 
arrive  at  no  other  conclusion,  than  that  he  was  suspected  of 
disloyalty,  and  that  the  visit  was  designed  to  drive  him  to 
perjury,  or  exile ;  or  else  that  it  was  a  senseless  proceeding,, 
which  ought  to  bring  the  government  that  made  it  into 
contempt. 

But,  Mr.  President,  the  enormity  of  the  proposition  remains 
yet  to  be  told.  It  violates  every  safeguard  of  personal  free- 
dom embodied  in  our  bill  of  rights,  moet  of  which  have  been 


Hz 

consecrated  in  the  history  of  Engh'sh  liberty  from  the  time  of 
Magna  Cbarta  Itself.  The  Northern  government  became  a 
despotism  by  usurpation.  Pass  this  ordinance  upon  the  old 
plea  of  tyrants,  the  necessity  of  the  times,  and  the  Sonthern 
one,  wUliin  the  borders  of  IS'orth-Carohna,  will  liave  become 
a  despotism  by  legislation.  Whereas,  our  people  are  resolved 
to  be  independent  and  free,  not  only  in  the  end  but  in  the 
MEANS.  They  are  resolved,  not  only  to  be  freemen  at  the 
termination  of  the  contest,  but  will  not  surrender  their  liberties 
during  its  progress.  Kor  will  ihey  be  satisfied  with  the  flimsy 
pretexts  and  excuses  for  the  sacrilice  of  a  sacred  principle, 
that  it  can  do  no  harm  except  to  traitors.  They  intend  that 
even  traitors  shall  not  be  condemned  except  in  accordance^ 
with  those  great  principles  of  right  and  justice,  which  are  of 
, universal  application.  For  they  know  full  well  that  it  is  upon 
the  persons  of  friendless  or  odious  men  that  despotism,  whether 
of  a  single  tyrant  or  of  a  mob,  first  lays  its  hands  ;  and  that 
vigilance  is  more  necessary  to  the  preservation  of  liberty  in 
times  of  public  peril  and  revolution,  than  in  peace.  Now, 
Sir,  you  can  hardly  mention  a  guarantee  of  individual  right 
contained  in  that  immortal  declaration  prefixed  to  the  consti- 
tution, which  is  not  outraged  by  the  proposed  proceeding  in 
relation  to  a  test  oath.  Let  me  particularize  a  few  of  the  more 
prominent  among  them  : 

1.  Contrary  to  the  very  words  of  that  declaration,  it  "dis- 
seizes every  freeman  "  and  every  boy  too  above  the  age  of 
sixteen,  of  his  privileges  as  a  citizen,  and  converts  him  into 
an  alien,  and  exiles  him  until  he  shall  re-establish  his  right  to 
citizenship  by  taking  the  oath  of  allegiance,  defense,  and  of 
abjuration  of  the  government  of  the  United  States,  already 
recited  ;  a  high-handed  outrage  in  subversion  of  "  the  law  of 
the  land,"  the  only  process  by  which  so  dreadful  a  sentence 
could  be  inflicted — and  it  is  well  known  that  "  by  law  of  the 
land"  here,  is  meant  a  regular  trial  before  Judge  and  jury, 
according  to  the  course  and  usage  of  the  common  law. 

2.  It  convicts  a  freeman  of  a  crime,  the  high  crime  of  dis- 
loyalty to  the  government,  by  an  act  of  attainder  passed  by 
this  Convention,  and  subjects  him  to  the  punishment  of  being 
banished,  unless  he  shall  acquit  himself  by  an  oath — the 
declaration  guaranteeing  that  no  such  conviction  shall  be  had 
"  but  by  the  unanimous  verdict  of  a  jury  of  good  and  lawful 
men  in  open  court,  as  heretofore  used." 

3.  Without  any  evidence  of  an  off'ense  having  been  com- 
mitted, and  without  any  offense  being  described  in  a  warrant 
and  supported  by  evidence,  it  considers  a  free  citizen  as  cou-. 
demned,  and  exiles  him  from  his  sacred  home,  unless  he  will 


14 

disclose  the  secrets  of  his  heart,  and  they  are  found  to  be 
patriotic,  by  a  Justice  of  the  Peace. 

4.  In  a  highly  criminal  proceeding,  it  compels  a  man  to 
give  evidence  against  himself.  This  hideous  feature  is  a  little 
disguised,  but  it  is  unquestionably  there.  If  he  wili  swear 
the  oath  he  goes  fr^ee,  but  if  he  will  not,  his  refusal  is  plenary 
evidence  of  his  guilt,  and  he  suffers  the  dread  penalty.  This 
refusal  he  is  forced  to  give  if  his  conscience  will  not  allow 
him  to  take  the  oath.  Wherein  does  tliis  differ  from  that  old 
device  of  bigotry  and  cruelty  of  putting  him  on  the  wheel 
and  cracking  his  bones  until  he  shall  declare  that  he  is  not 
guilty  of  heresy  or  treason  i  In  nothing  that  I  can  perceive, 
except  that  in  the  one  case  he  suffers  in  the  flesh,  and  in  the 
other  it  is  expulsion  from  wife  and  children,  and  friends,  and 
country. 

Mr.  President,  when  my  friend,  Charles  S.  Morehead,  of 
Kentucky,  as  noble  and  gallant  a  gentleman  as  any  that  1 
have  ever  known,  was  seized  on  his  native  soil  and  hurried  off 
to  a  prison  in  a  far  distant  State,  upon  an  alleged  order  fiom 
the  Secretary  of  State  at  Washington,  I  thought,  not  that 
"  ten  thousand  swords  would  have  leaped  from  their  scab- 
bards," but  that  the  Mississippi  valley  would  have  risen  as  one 
man,  and  cried  "  to  the  rescue,"  American  constitutional 
freedom  had  been  struck  down  in  the  person  of  one  of  the 
noblest  of  her  sons;  and  I  supposed  that  without  regard  to 
past  differences  of  opinion  as  to  whether  the  Union  should  be 
maintained,  all  men  would  have  been  satisfied  by  that  act  of 
tyranny,  that  the  fvQQ  Constitution  of  our  fathers  was  extinct; 
that  arbitrary  power  reigned  in  its  stead  ;  and  that  safety  was 
only  to  be  found  in  the  overthrow  of  that  power.  But  that 
proceeding,  violent  and  revolting  as  it  w^as,  may  be  favorably 
distinguished  from  this.  Morehead  w^as  not  required  to  give 
evidence  against  himself  The  government  which  arrested 
him,  professed  to  have  had  sufficient  proof  of  his  guilt,  and 
did  not  call  upon  him  under  penalty  of  exile,  forfeiture  or 
torture,  to  furnish  any  evidence  either  positive  or  negative  to 
effect  the  case.  Sir,  I  think  it  now  appears  that  the  oath  in 
question  requires  some  emendation.  The  citizen  ought  to  be 
excused  from  swearing  to  support  the  Constitution  of  North 
Carolina,  as  heretofore  existing,  since  the  whole  proceeding 
violates  so  many  of  its  fundamental  principles,  as  in  fact,  to 
abrogate  it.  He  might  wnth  more  propriety  be  called  on  to 
take  an  oath  of  abjuration,  declaring  that  he  had  no  faith  in 
the  bill  of  rights,  as  a  means  of  securing  freedom,  and 
renouncing  his  adherence  to  it,  at  least,  in  all  cases  where 
disloyalty  was  imputed.     That  would  be  far  more  appropriate 


15 

than  that  other  oath  of  abjuration,  "renouncing  'hereby' 
all  allegiance  to  the  United  States ;"  implying  in  the  clearest 
manner  that  until  the  oath  is  taken,  allegiance  is  still  due  to 
the  United  States— a  folly  that  will  excite  a  laugh  wherever 
it  is  not  taken  as  an  insult.  The  citizen  will  say,  I  protest  that 
I  thought  all  this  was  settled  in  May  last,  by  the  Convention. 
I  have  not  considered  myself  as  owing  any  allegiance  to  the 
United  States,  since  that  time,  and  I  have  none  that  I  can 
*4iereby "  renounce.  With  nearly  as  much  reason  might 
he  be  required  to  renounce  all  allegiance  to  Victoria  Regina, 
successor  of  the  Georges  second  and  third,  of  whom  our 
fath(irs  were  born  subjects,  and  to  abjure  the  heresy  of  tran- 
substantiation,  the  invocation  of  saints,  and  Popery  in  general, 
as  the  Englishmen  who  took  office  were  required  to  do  prior 
to  Catholic  emancipation.  And  the  power  being  established, 
as  it  is  assumed  by  this  ordinance,  it  would  be  the  easiest  thing 
in  the  world  to  superadd  a  mild  adjuration,  to  abide  by  the 
creed  as  established  by  the  Convention,  Synod,  Conference  or 
Association,  as  one  or  another  denomination  might  happen  to 
predominate  with  the  ruling  powers. 

And  h'ere  let  me  correct  a  very  important  error  of  fact 
which  appears  in  the  committee's  report.  It  is  there  stated 
that  our  volunteers  who  have  entered  tiie  military  service  have 
taken  an  oath,  and  it  is  argued,  that  therefore  all  other  citizens 
should  enter  into  the  like  solemn  obligation.  The  conclusion 
would  not  follow,  if  the  oath  were  the  same.  Soldiers  received 
into  the  service  and  pay  of  the  State  or  nation,  like  public 
servants  in  civil  office,  have  always  been  required  to  take  an 
oath  of  allegiance,  but  citizens  in  general  never  w^ere.  In 
fact,  however,  no  volunteer  has  taken  the  absurd  oath  here 
proposed  to  be  thrust  upon  the  citizen.  They  have  not  been 
required  to  abjure  allegiance  "to  the  government  of  the 
United  States."  They  are  bound  to  take  an  oath  of  allegiance 
to  the  State.  And  under  an  act  of  Assembly  in  May  last^,  the 
Governor  prescribed  an  oath,  by  which  they  undertook  "  to 
obey  his  orders,  and  the  orders  of  the  officers  set  over  them." 
But  by  ordinance  of  this  Convention  they  were  relieved  from 
an  oath  of  this  nature,  which  no  man  could  be  expected  to 
keep  without  some  infringement,  and  which  had  been  disused 
in  the  army  of  th,e  United  States,  prior  to  the  Mexican  war, 
and  since;  and  they  were  sinaply  made  liable  to  the  penalties 
of  the  articles  of  war,  for  disobedience  of  orders,  from  the 
time  of  signing  the  agreement  of  enlistment.  No  volunteer 
of  Korth-Carolina,  therefore,  can  be  lawfully  required  to  take 
any  oath,  but  tlie  oath  of  allegiance  to  the  State,  anterior  to 
his  being  mustered  into  the  service  of  the  Confederate  States. 


1? 

That,  let  us  remember,  is  a  government  with  Legislativev 
Execntive,  and  Judicial  functionaries,  in  full  operation,  and 
can  prescribe  and  administer  such  oaths,  as  to  it  may  seem 
meet,  to  soldiers;  and  if  it  wishes  to  try  so  hazardous  an 
experiment,  to  citizens  also.  Our  interference,  then,  to  bind 
the  consciences  of  our  citizens  to  that  government,  after 
having  granted  it  power  of  life  and  death  over  their  conducty 
is  quite  a  vrork  of  supererogation,  if  not  of  servility.  In  its 
Constitution,  Art.  6,  sec.  4,  it  has  plainly  enumerated  the 
persons  in  the  State  and  Confederacy,  whom  it  requires  to  take 
the  oath  to  support  it.  If  it  desires  to  enlarge  the  catalogue, 
by  polling  every  citizen,  to  search  his  heart,  and  see  if  it  can- 
not find  somebody  to  punish  as  a  traitor,  let  it  try  the  ^•irtue 
of  an  act  ot  Congress,  and  the  machinery  of  its  own  officers. 
That  would  give  the  regulation  generality,  and  relieve  it  of 
.one  of  its  features  of  hate  fulness,  that  of  being  leveled  at  the 
people  of  a  particular  State,  and  this  by  tfie  officiousness  of 
the  State  authority  in  a  matter  committed  by  the  people  to 
other  hands.  For,  I  suppose,  no  one  imagines  that  there  is 
any  danger  of  rebellion  against  the  State  government  as  such. 
The  whole  solicitude  which  prompts  this  most  extraordinary 
measure,  springs  from  an  apprehension  of  iniidelity  on  the 
part  of  the  people,  or  a  portion  of  them,  to  the  Confederate 
government — and  it  implies  that  that  government  is  too  weak 
or  its  functionaries  too  timid  to  provide  and  apply  the  needful 
remedies.  We,  therefore,  must  rush  in  to  the  help  of  the 
nation.  If  Congress  were  consulted,  I  doubt  not  they  would 
render  thanks  for  the  good  and  patriotic  intention,  but  if  they 
spoke  candidl}^  would  declare  that  they  considered  the  remedy 
ten  times  as  bad  as  the  disease.  ISTo,  Sir — the  Congress  would 
as  soon  think  of  repealing  the  Constitution,  and  dissolving 
into  a  state  of  chaos,  as  to  undertake  this  process  of  the  polling 
and  purgation  of  the  whole  people.  Nor  has  any  other  State 
proposed  or  conceived  it.  They  know,  that  if  serious  disat- 
fection  does  not  exist,  (as  everyone  knows  it  does  not  in  North 
Carolina,)  this  is  a  way  in  which  the  government  may  readily 
be  brought  into  contempt  and  collision  with  the  people;  and 
that  if  it  did,  this  is  not  the  mode  in  which  to  deal  with  it.  Lord 
Macauley  relates  of  James  II,  that  he  never  learned  how  to 
treat  an  insurrection,  which  conmion  sense  teaches  should  be,^ 
by  taking  hold  of  the  ring-leaders  and  making  examples  of 
them, — but  on  the  happening  of  such  an  occurrence,  he  seized, 
tried  and  executed  the  unhappy  insurgents,  of  all  ages  and 
sexes;  and  while  his  servile  and  tyrannical  chiet,  justice, 
Jeffries,  went  tlie  circuits  pervertmg  the  law  for  the  condem- 
nation of  all  accused,  the  moody  monarch  diverted  himself 


n 


among  liis  parasites  and  courtiers  bj  speaking  of  them  as 
Jeffries'  campaigns.  Sir,  the  progress  of  yaur  justices  under 
this  ordinance,  abjuring  men  and  boys,  witliout  regard  to  the 
aged,  the  decrepid,  the  halt,  maimed  or- blind,  under  terror  of 
^^xile  or  degradation  1mm  the  proud'privileges  of  citizenship, 
will  be  looked  upon  by  those  who  have  the  instincts,  not  to  say 
knowlo  !ge  of  freemen,  as  no  less  of  campaigns;  and  with  no 
view  to  favor  the  public  enemy,  but  to  assert  their  self-respect 
and  dignity,  they  will  strive  to  liurl  from  power  the  authority 
binder  which  they  are  made.  What,  Sir,  is  such  a  proceeding 
but  the  establishment  of  martial  law  throughout  the  length 
and  breadth  of  the  State,  by  which  the  peaceful  citizen  U 
invaded  in  his  home  and  his  conscience,  and  placed  upon  the 
footing  of  the  inhabitant  of  a  besieged  city  or  fortress,  or  ot 
a  conquered  rebellious  province?  A  Eoman  pro-consul,  a 
I'ritish  colonial  Governor,  or  a  successful  General  in  the  armies? 
of  Abraham  Lincoln,  with  an  overwhelming  force  and  but 
feeble  resistance,  may  adopt  measures  of  such  dictatorial 
:-8verity  and  rigor.  \Vc  are  informed  that  Governor  Tryon, 
after  overpowering  the  Eegulators  at  Alamance,  marched  a 
military  force  into  many  of  the  upper  counties  of  the  then 
province,  and  exacted  from  the  inhabitants  an  oath  of  allec^i 
ance  to  the  King  at  the  point  of  the  bayonet.  Gen.  Dix,  also, 
upon  his  recent  conquest  of  the  two  counties  on  the  eastern 
shore  of  Virginia,  condescended  to  advertise  their  helpless 
citizens,  that  if  they  would  take  the  oath  of  allegiance  to  the 
United  States,  they  should  receive  every  protection,  and  their 
property  should  not  be  confiscated.  This  was  a  sufficient  hint 
what  consequences  would  follow  if  they  did  not.  But,  who 
before  ever  heard  of  a  government  professing  to  be  free,  under- 
taking to  drive  from  its  borders  or  disfranchise  its  whole  pop- 
ulation, if  they  would  not,  man  by  man,  submit  to  the  ordeal 
of  a  compulsory  test  oath?  ,  ISi ay,  what  arbitrary  despotism, in 
its  domestic  rale,  ever  embarked  in  any  such  enterprize  of 
Quixotic  absurdity  ?  "Was  it  attempted  in  France  under  the 
lirstiS'apoleon,  or  under  the  third  ?  Even  in  the  wildest  excesses 
of  her  revolutionary  phrenzy,  there  seems  to  have  beeji  suffi- 
cient common  sense  left  to  the  ruling  authorities  to  enable  them 
to  recollect,  that  ''human  law  is  a  rule  of  civil  rondw-^^^  not 
oi  faith ^  and  that  only  bigotry  and  fanaticism  will  attempt  to 
regulate  conscience  and  opinion  in  government  or  in  religion. 
Charles  Y.,  Emperor  of  Germany  and  Spain,  after  waging  for 
years  the  most  bloody  and  relentless  wars,  to  put  down" Luther 
and  the  Reformation,  becoming  sated  wnth  carnage,  and  dis- 
gusted with  the  pageantry  of  monarchy,  yielded  up  the  reins 
to  his  son,  and  retired  to  a  monastery.    There,  he  amused  his 


18 

leisure  in  scientific  studies,  and  in  experiments  upon  instru- 
ments for  measuring  time.     But  by  no  diligence  or  skill  was 
lie  ever  able  to<-n[iake  two  clocks  run  alike.     Tliis,  says  ins 
biographer,  Dr.  Robertson,  saddened  his  soul  with  rcuiorseful 
3'efiections  upon  his  pi-exious  lite,  in  which  he  had  causc(i  I'ivers 
of  blood  to  flow,  in  vain  and  wicked  efibrts  to  coiripel  men  to 
think  alike.     This  simple  anecdote,  whicli  is  but  an  illustration 
of  all  human  experieuce,  proves  the  futility  and  impossibility 
of  conrroiling  thought  and  opinio]] ;  and  that  those  govern- 
ments only  are  wise  that  leave  the  mind  and  conscience  free, 
and  are  content  with   conformity  to  their  behests,  in  action. 
Of  the  one  hundred  and  twenty  thousand  voters  in  tlie  State, 
how  many  in  tlie  eighty-Uve  years  of  its  independence  have 
taken  an  oath  to  the  State,  or  to  tlie  United  Stares,  during  our 
connection   with  that  governnient  ?     Those  who  iiave  tilled 
office,   and   exercised   a  portion  of  the  sovereign  power  as 
magistrates  or  constables,  or  in  the  higher  stations,  have  been 
obliged,  and  properly  too,  to  swear  lidelity  to  the  State  and 
general  goverement  ;  but  as  to  tlie  great  mass  of  the  people, 
if  tliey  have  not  literally  kept  the  Scriptural  injunction  to 
*'  swear  n(»t  a-t  all,"  it  has  not  been  by  reason  of  any  oath,  of 
fealty   imposed  by  public  autliority.     And  the   inquiry  vvill 
naturally  be  made,  where  is  the  necessity  for  this  novel  and 
most  extraordinary  procceduig?     The   Legislature   has  been 
twice  convened  in  extra  session  since  the  breaking  out  of  the 
present  war,  and  has  considered  and  adopted  such  measures  as 
they  deemed  necessary  to  the  public  safety  or  defence.     But 
no  member  of  either  House,  in  anxious  contemplation  of  the 
■crisis,  seems  to  have  thought  of  a  test  oath,  forced  upon  all 
the  people,  under  terror  of  exile  or  loss  of  privilege,  as  among 
these  measures.     Caesar  Augustus  sent  out  a  decree  rliat  all 
the  woi'ld  should  be  taxed.     Ihe  North  Carolina  Convention 
is  asked  to  send  out  a  decree  that  all  the  world  shall  be  sworn. 
There  is  virtue  in  taxation.     Money  is  tlie  sinews  of  war — but 
what  nation  was  ever  defended  by  oaths, — oaths  imposed  on 
its  own  i^eople  without  distinction,  especially  when  the  alter- 
native was  banishment  or  degradation  ? 

Mr.  President,  to  say  of  this  measure  that  it  is  absurd  and  cal- 
culated to  bring  ridicule  on  our  legislation,  and  that  it  is  un- 
necessary, and  will  be  wholly  ineii'ectual,  if  necessary,  inas- 
inuch  as  a  forced  oath  is  w^ell  understood  to  be  no  oath  in  the 
sight  of  man  or  his  Maker,  is  but  to  characterize  its  more  ob- 
vum?  features.  I  am  fully  pursuaded  that  abroad,  if  not  at 
home,  it  will  be  regarded  as  the  offspring  of  fear.  It  will  be 
s\rgued,  and  the  hypothesis  cannot  be  resisted,  that  a  proceed- 
ing so   universal,  so  unusual,  so  searching,  so  destructive  of 


19 

personal  freedom  and  danorerong  to  public  liberty,  would  not 
be  resorted  to  except  in  a  State  where  public  sentiment  was 
suppressed  by  the  high  hand  of  force,  and  a  sense  ol  danger 
had  driven  the  government  to  desperation.  In  that  aspect  no 
measure  could  give  greater  encouragement  to  the  enemy,  and 
no  libel  could  more  deeply  wound  the  sensibilities  of  the  peo- 
ple of  tli'^  State,  or  do  tliem  more  gross  injustice.  They  have 
Icoked  upon  the  pending  contest  as  a  foreign  war,  of  nation 
against  nat^'on,  waged  upon  the  frontiers  by  national  armies. 
But  you  propose  b}-  tin's  ordinance,  to  declare  it  a  civil  and' 
Bocial  war,  in  which  no  man  is  to  be  trusted — in  which  the  se- 
cretsof  the  right  hand  may  be  concealed  from  the  left,  until 
you  have  cleansed  out  the  conscience  and  made  assurance 
doubly  sure  by  a  forced  oath.  It  is  not  enough  that  35,000 
men,  portions  of  them  from  every  county  in  the  State,  are  in 
the  field,  exposing  their  lives  to  the  arms  of  the  enemy,  and 
to  the  pestilence  of  camp  and  garrison,  and  that  almost  evavy 
family  has  its  representative  there  ;  that  they  have  submitted 
cheerfully  to  the  burdens  of  taxation,  and  the  privation  inci- 
dent to  a  destruction  of  commerce,,  and  have  over  and  above 
this,  voluntarily  and  cheerfully  contributed  of  their  labor, 
their  substance  and  the  very  comforts  of  their  homes,  to  irive 
aid  to  your  soldiers  and  vigor  to  their  efforts;  that  there  is 
not  a  cloud  of  dislo\alty  to  be  seen  in  all  the  horizon  as  bicy 
as  a  man's  hand  ;  but  that  the  wliole  people,  it  may  be  with 
trifling  exceptions,  are  pressing  forward  with  a  noble  unanim- 
ity to  the  establishment  of  our  national  independence.  All 
this  will  not  suffice.  Every  man  must  be  purged  as  by  fire. 
And  all  for  what?  The  report  of  the  committee  informs  us. 
It  is  "  is  rid  the  country  of  traitors  at  heart,"  who  are  suppo- 
sed to  be  few  in  number,  and  will  be  discovered  when  tested 
by  this  oath.  Such  doctrine,  Mr.  Paesident,  is  the  very  big- 
otry of  despotism.  Who  constituted  us  the  searchers  of 
hearts?  What  government  ever  undertook  to  deal  with  any 
thing  as  crimes,  except  the  overt  acts  of  its  people,  but  the 
most  unmitigated  tj^rann^es?  There  are  doubtless  republicans 
in  principle  residing  under  every  monarchy  in  Europe,  and 
there  may  be  monarchists  in  the  States  of  America,  but  so 
loiig  as  they  demean  themselves  as  peaceable  citizens,  do  not 
levy  war  against  the  State  or  the  Confederate  States,  nor  ad- 
here to  our  enemies  giving  them  aid  and  comfort,  they  pas3 
without  molestation,  and  are  under  the  protection  of  the  Con- 
stitution and  laws.  If  there  be,  as  the  committee  presnmes, 
traitors  among  us,  they  are  not  of  my  acquaintance,  nor,  so 
far  as  I  am  aware,  of  my  section.  But  wherever  they  aiT«, 
treason  is  an  offense  well  known  to,  and  defined  hj  law^  and 


20 

like  other  crimes,  is  to  be  dealt  with  according  to  law.     And 
it  is  quite  remarkable,  that  while  the- committee  in^veigh  with 
Tehemence  ^ga'nst  tlie  despotism  now  practiced  bj  the  Lin- 
coln government  in  Maryland,  they  should   bring  forward  a 
measure  equally  ahorrent  to  freedom  in  N"orth-Carolina.    Sir, 
if  sucli  a  measure  prevails' and  is  acquiesced  in,  it  is  of  little 
laoment  what  may  be  the  iasuo  of  the  present  great  conflict 
in  the  battle-field.     Wc  shall  iu  the  cndbein  any  event  slaves-, 
luid   present  the   sad  spectacle  of  a  State  throv;ing  away  its 
liberties  in  a  struggle  to  preserve  them,  in  angry  imitatio^]  of 
the  contagious  example  of  an  eneray  who  threw  away  theirs,, 
to  g-lve  vigor  to  their  efforts  for  our  subjugation.     l"  protest 
against  it,  as  a  gross  abuse,  amounting  in  efieet  to-  a  usurpa- 
tion ot  power — as  a  dangerous  device  by  which  a  faction  may 
at  any  time  pervert  the  government  and  transmute  it  into  an 
oligarchy.     I  protest  against  it  in  the  name  religions  freedom 
and  domestic  quiet — in  the  name  of  that  civil  liberty  which 
is  our  birthright,  and  lias  been  the  inheritance  of  our  ances- 
tors for  eight  hundred  years.    I  protest  against  it  as  a  weak  and 
futile   weapon   of  defence,  calculated  only  to   encourage   the 
enemy,  weaken   ourselves*  and   to  bring  our  legislation  intc 
ridicule  and  disrespect  at  home  and  abroad,  and  degrade  our 
citizens  in  their  own  esteem — as  an   officious  intermeddling 
with  the  province  of  the  Congress  of  the  Confederate  States 
— aa  a  libel  upon  the  people  we  represent,  whose  noble  alac- 
rity, patience,  perseverance,  self-denial  and   bravery  in   this 
contest  deserve  all  praise.     Whereas,  the  statute  book,  in  the 
present  times,  and  much  more  in  the  future,  in  all  historical 
interpretation  must  be  construed  to  imply  an  imputation  of 
wide-spread  disaffection.     I  protest  against  it,,  finally,  as  an 
ir.iitation  of  IS'orthern  despotism,  outstripping^  its  model — nO' 
ether  State  of  the  South  having  conceived  such  an  idea,  though 
in  several  of  them  disaffection  not  only  is  rife,,  but   treason 
stalks  abroad  in  arms. 

But  the  committee  plants  itself  on  a  precedent  in  an  act  of 
the  General  Assembly  of  1777,  and  says  all  the  material  parts 
of  this  ordinance  are  copied  from  tljat  act.  Precedents  in  the 
pleadings  of  the  law  are  said  to  be  dangerous  things,  if  one 
does  not  know  how  to  fill  up  the  blanks;  and  statutory  pre- 
cedents are  equally  fallible  and  deceptive  as  guides  to  politi- 
cal actian-,  if  we  shut  our  ejes  to  the  circumstances  and  sur- 
roundings of  historical  facts  which  distinguish  former  times 
from  our  own.  Let  me  inquire  of  the  committee,  whose 
chairman  holds  a  high  judicial  station,  whether  this  ordinance 
does  not  contravene  the  Bill  of  Rights  and  Constitution  in  the 
particulars  I  have  enumerated,  and  if  it  does,  whether  a  simi- 


Jar  act,  passed  in  1777,  by  the  General   Assembly,  did  not 
equally  contravene  it — and  wlien  an  act  of  the  General  As-  . 
seiribly  docs  come  in  conlliet  with  the  Constitution,  which  is  - 
^o  give  way  ?     He  is  obliged  to  answer,  the  act  of  Asscinl'ly,  ^ 
/f:cource.     Bat  it  was  not  so  uTid^scood  in  1777-     The  opiii- 
:on  seems  to  have  prevailed   then,  iind  for  years  afterwards, 
that  the  General  Assembly  was  as   oittniporent  as  the  Briris'i 
Parliament,  and  Avhen,  in  1786,  the  courts  of  justice  decided  . 
an  act  of  the  Legislature  to  he  unconstitutional,  it  produced  a 
great  sliock  in  the  minds  of  higliiy  intelligent  men.    .This  act 
oit.  1777,  which  undertook  to  banish  fraeinen  wtio  were  inhab-  . 
itants  of  the  State  at  the  adoption  of  the  Constitution,  or  to 
deprive  them  of  tlie  right  of  snilVage  if  they  refused  to  take 
an  oath  of  allegiance,  was  clearly  unconstitutional,  not  only 
in  the  points  already  specified,  but  in  assuming  to  take  away  • 
the  right  of  suffrage  in  the  face  of  the  provision  of  the  Con- 
stitution declaring  that  all  freemen  21  years  of  age^  who  have  * 
b^en  inhabitants  a  cejtain  time,  and  paid  public  taxe^    •-^^>''' 
8-xercise  it.      ButJ   waiving  the   constitutional  questi; 
situation  of  onrancestors  in  177(j-'7.  differed  essentially  iroui 
3urs  at;  thifj  time,  in  many  particulaifi  to  their  disadvantage; 
and  in  the  poverty  of  their  resources,  and  newness  of  their- 
oxperimenfc,  it  should  not  surprise  us  that  tliey  laid  hold  of  a  ' 
test  oath  as  a  weapon  with  which  bigotry  and  arbitrary  power 
liad  sought  to  fortify  themselves  in  Europe,  hoping  they  could  • 
render  it  useful  in  the  defence  of  fVeedoin  liere.    They  may  ' 
possibly  have  tho^ight  that  as  allegiance  under  a  monarcli  is  - 
.lue  to  the  person  of  the  sovereign,  it  might  still  linger  in  the 
breasts  of  some,  and  that  this  violent  remedy  should  be  resorted 
to-for  its  expulsion.*     But  before  we  are  called  on  to  follow 
this  as  a  precedent,  it  should  be  shown  from  subsequent  history  ' 
that  it  was  of  some  avail  in  the  contest.   -It  was  provided  in 
the  act  that  the  name  of  every  person  taking  it  should  be  sub- 
T^cribed  in  a  book,  to  be  deposited  in  the  office  of  the  Clerk  of 
the  County  Court.     Who  has  ever  seen  such  a  book?     Xlie 
lionorable  gentleman  from  Mecklenburg,  Mr.  Osborne,  who 


*'  Xot::. — On  looking  into  4th  Blackstone's  Com.  p.  1:.., 
that  the  whole  of  this  statute  of  1777,  in  rt-latiou  ton  te?t  oaiii  uirJ  ■jir;i-.L- 
ment,  or  disfranchisement  as  a  citizen,  is  11  teraUy  copied  from  the  statute  of ' 
".leorge  1st  against  Popish  recusants^     So  that  the  ordinance  of  the  com-  ' 
iiiittec  is  but  a  copy  of  an  act  of  171-5.  a]>|)lying  a  religious  test  to  Papists 
—except  that  in  the  former  case,t\vo  Justices  of  the  Peace  .were  invested  ^ 
with  power  ''to  tender  the  oath 'to  any  persoa  whom  they  shall  suspect  to 
b4  disaffected,"  and  in  our  '■-.-•  .^I'-r-.-  n..,.^,w,  -^  (,•,.,-.,]  .,.  :i-  .nc-  •.-.,!   •  -,-■ 
tetldcred  the  oath  accordin-' 
short  of  2^  jjrcarnunire. 


22 

has  just  taken  liis  seat,  has  made  considerable  reseairches  in 
the  pubh'c  papers  of  his  county,  which  is  one  of  historical 
renown  ;  lias  he  (^vev  fonnd  such  a  book?  Have  you,  Sir,  or 
any  other  gentleman  here  ?  One  of  two  conclusions  is  certain. 
Either  that  there  was  no  general  attempt  to  exact  such  an  oath, 
which  is  the  more  probable  ;  or,  that  if  exacted,  it  had  not 
the  lefist  effect.  For  when  the  Britisli  invaded  the  State  in 
1  rS0-'81,  the  Tories  rose  in  those  sections  where  they  were 
known  to  be  in  the  outset  of  the  war,  and  in  no  other.  The 
act  was,  therefore,  as  characterized  by  the  gentleman  from 
Richmond,  Mr.  Leake,  hruhim  fuhnen^  producing  no  effica- 
cious result.  With  the  men  of  1776-'?,  there  was  a  total 
change  of  government,  and  of  the  administratjon  of  govern- 
ment. With  them  "  old  things  had  passed  away,  and  all  things 
liad  become  new."  There  was  no  general  government  on 
which  to  rely  for  general  defence  and  welfare.  The  States 
were  united  only  by  certain  articles  of  association.  And  in 
.North-Carolina  a  State  government  just  formed,  with  no  laws 
or  officers  to  administer  them,  except  what  they  enacted  and 
appointed  in  the  pressure  of  the  emergency,  was  their  sole 
reliance  in  general  and  domestic  concerns.  They  had  to  pro- 
vide for  treason,  sedition,  and  everj^  crime  in  the  calendar^ 
and  it  is  in  a  statute  concerning  treason  that  the  committee 
has  found  the  model  of  this  ordinance.  Now,  Sir,  if  so  much 
weight  is  due  to  a  precedent,  why  not  re-enact  the  whole  stat- 
ute, that  part  which  relates  to  treason  as  well  as  misprison  of 
treason  and  test  oaihs?  That  is  the  only  part  of  the  statute 
that  we  have  heard  of  being  put  into  execution.  The  Tory 
Colonel,  Bryan,  was  tried  for  treason,  and  convicted,  I  presume, 
under  this  statute.  But  he  had  a  trial  by  due  course  of  law. 
He  was  not  called  on  to  iurnish  evidence  against  himself  by  a 
test  oath,  and  he  was  defended  by  Davie,  who  had  slaughtered 
a  large  part  of  his  regiment  in  battle,  but  who,  after  the  exam- 
ple of  John  Adams  in  defending  the  British  soldiers  who  fired 
on  the  multitude  in  the  streets  of  Boston,  was  equally  firm  in 
asserting  all  his  rights  of  defence,  as  a  criminal.  But  who 
ever  heard  of  a  trial  for  misprision  of  treason  or  sedition,  or 
the  general  enforcement  of  a  test  oath  upon  any  hut  suspected 
persons  ?  The  Revolution  of  the  2()th  of  May  last,  was  under 
wholly  different  circumstances.  What  our  fathers  did  in 
weakness  we  have  done  in  strength.  In  the  State  govern- 
ment, with  the  same  Constitution,  the  same  laws,  the  same 
officers  in  all  its  departments  and  ramifications,  there  has  been 
wo  change  that  would  cause  a  ripplu  on  the  surface  of  the 
waters.  The  ship  of  State  has  sailed  on  in  her  great  career  of 
justice,' without  reefing  a  sail  or  changing  a  spar.     In  national 


23 

affairs  the  (iifFerence  is  still  more  remarkable.  Instead  of  no 
general  government,  and  a  dependence  on  the  discordant 
legislation  of  thirteen  Srares,  we  tind  a  Constitution  of  national 
government  copied  almost  literally  from  the  Constitution  of 
the  United  States,  in  fnll  and  vigorous  operation,  with  a  Pies- 
ident,  Congress  and  Judicial. v — defendmg  our  cause  with 
an  ^ii'iny,  in  etlectiveness,  if  not  in  nninhers,  such  as  the  pnp- 
ulous  North  never  poured  <>n  the  lihine  or  the  Danube,  or  t!io 
sunny  plains  of  Italy — with  treason  defined  in  the  Constitu- 
tion for  the  security  of  tlte  citizen  as  well  as  siitety  to  tho 
government — with  the  possible  power  to  ))ass  sedition  and  te>t 
laws  for  its  defence,  like  as  the  tState  governments,  but  like 
those  governments  abstaining  tVom  the  use  of  them,  as  the 
cast-oli'  paraphernalia  of  despotism.  To  think  of  bringing  a 
State  test  oath  into  play  as  a  means  of  defence  in  such  a  pos- 
ture of  aifairs,  upon  a  precedent  of  an  unconstitutional  act  of 
Assembly  in  1777,  is  to  my  mind,  as  if  one  should  propose,  in 
the  midst  of  rifled  cannon  and  all  the  advancement  aiid 
improvements  in  modern  warfare,  to  return  to  the  bow  and 
poisoned  arrow  of  the  savage,  because  the  Aborigines  had 
used  them  in  the  earliest  wars  ot  this  continent.  Let  thexp 
both  be  consigned  where  they  belong,  to  the  curious  inve.sti- 
gations  of  the  antiquarian  ;  but  let  us  hear  no  inore  of  them 
in  the  enlightened  legislation  of  a  free  people. 

Mr.  Pi'esident,  tliei-e  is  one  diversity  in  the  two  revolutions, 
which,  wlien  brought  to  notice,  must  convince  all  that  there  is 
the  least  analogy  imaginable  in  the  two  cases  ;  and  that  is  in  the 
persons  called  to  fill  office  upon  the  change  of  government. 
Our  ancestors  would  as  soon  have  thought  of  electing  Lord 
Korth  to  the  office  of  Governor  as  of  recalling  G<»veinor 
Martin  or  Governor  Tryon,  and  of  bringing  over  Lord  Mans- 
field with  his  high  tory  principles  .o  their  chief  jusriM'ship,  as 
to  have  appointed  one  of  the  late  Kings'  Judges.  Wherf^s, 
our  State  officers,  as  we  h-ave  seen,  have  been  nncliangeH  in 
a  single  particular ;  and  in  appointments  to  ofiice  undi^'jiio 
Contederacy,  it  has  been  no  objecti(m  that  the  appointee  held 
a  similar  appointment  with  a  regular  commission  and  oath  of 
office,  and  received  its  emoluments  from  the  Federal  Treasniy 
to  the  hist  pay  day,  before  the  Pi-oclamation  of  tlit^  1 8th  (»f 
April.  Now  Sir,  in  the  Revolution  of  lT7t>,  tin's  wojild  not 
have  been  permitted.  The  tirst  persrms  on  whom  the  ac  of 
1777,  to  which  the  committee  i-efers  in  terms  of  such  liigh 
approbation,  laid  its  hands  and  required  to  be  sworn,  were  all 
the  late  oljice  s*  of  the  King  of  Great  Britain.  They  were  put 
before  the  "  traders  who  had  been  making  voyages  to  England 
within  ten  years  then  last  past."     Thei-e  are  many  copies  of 


24 

Iredell's  Eevisal,,  stowed  away  in  the  lionaes  of  the  people  of 

the  country;  -and  wheii  they  are  informed  that  the  preceder^ 

for  tills  ordinance  is  to  be  found  there,  they  will  brus!, 

from  tli'^  old  book  and  read  it  for  tlK-msi^U-^^.     And 

iav  :  executed. so  rii-'oronsly  *  -^'"^y  \x\\. 

toi-wi-,.    /.hether  jou  beg-iii  at  the  lu-i  ^  ...:-■  .,' 

all  Vvdio   lield   oiiice   \iiider  the  late  j>t)\ 

they  ar        "\  '  \  '" 

to  plac  _  ,   \ 

they,  will- scoui  uu.^it  of  \7'. 

pnr<4;ed  with   tl  oaili  or  Icav 

Held  t!  1  recei^-ed  tlieir  compensations  v 

oM  g-o\^.  .....^....  .  lionkl  take  a  dose  that  would  nr/ 

cannon,  at  least   before  tlu^^y  are  trnsted  with  olhc: 

1  appreiien''   ' '"■■    .  '    :;  ^  V"    -'  '      '         ^  '     •-  ■    -■ 

many,  tho" 

Ya  '  ''     ^ 

no 

terxiuio  t-wearii 

na: 

the  oifences  theroui  enumei-ated,  and  whicli  tlie  coii-iL-ittee 
calls  sedition,  were  in-  the  act  of  1777,  cai"    '       '       '  '  ■' 

treason.     It  i^,   thereibre,   ]'e^•iv!n.a■  a^i   r^^'  ' 
\inder  a  new  and   milder   '  lerican 

least,  has  m;ido   some    ])ro  ,__.    _    3  crimes     -    ..!..;,, 

M(irti<:  treason,  etc.,  since  1777.     It 

was  a  i;:- .....  j;v..;:o  ^..M.^va  i>^,   iiuman  ^-''^  •\-''  •■''-•-' v,  that  in 

the  Federal  Constitution  oC  17'^7,.  ti.  \  to  <^x)r\'- 

^htonly  in  levying  war  a^^aiiist  the  limieu  uiatcs,  or  in  adher- 
ing to  their  enemies,  giving-  tlten^i  aid  and  conrfort  ;  a  provision 
that  has  been  literally  coi'ied   in  the  ConstitutioM  of  the  (  ' 
federate  States — and  b-y  an  ordipiance  of  this  body,  ii:';, 
of  this  State  also.     It  is  enough  to  make  the  Hi 
now   to  review   the  his^' •^-  -'f  what  were  at  dii..-.:..    .  .....s 

denominated  and  adju''  on  in  England,  and  to  remem- 

ber what  hetaeombs  of  j.iimai;  victims  the  fluctuating  state  of 
^he  law,  and  its  pliant  and  corrupt  apministration,  to  favor  the 
views  ot  tlie  reigning  sovereign  or  of  Ids  niinious,  carried  to 
th-e.  scaffold  and  the  gibbet.  An  extraordinary  insfance  of 
treason  hy  words,  was  mentioned  in  oui*  discussion  of  this 
subject  at  the  last  session,  wdiere  a  nian  of  note  was  put  to 
d«|ath  for  declaring  in  a  anuuent  of  ii-ritaiion,  on  hearing  of 
the  shouting  by  the  King,  of  his  favorite  stag,'  tliat  "lie  fished 
tho  horns  of  the  stag  were  in  the  King's  belly."     As  Plutarcli 


25 

.-olntes  of  Dionysias,  the  tyi'ant,  that  he  capitally  eAeciUed  a 
subject  for  relating  that  he  liad  dreamed  he  killed  the  King, 
saying  it  was  proof  tliat  he  thought  of  it  while- awake.  Sir, 
i!ie  fate  of  Sidney  and  Ilnsseil,  and  j^^liniidred  other  martyrs 
')f  that  very  freedom,  which  loomed  but  in  the  English  revo- 
iution  of  16S8,  and  assumed  its  fnll  proportions  in  our  Ameri- 
can, Constitutions  a  centnry  later,  vrill  msh  nponour  rnemorie^ 
at  the  suggestion  of  this  theme,  and  illustrate  the  wisdom  of 
the  const it'iVtibn^l  provision.  While  j^  sufficiently  secures  the 
government  from  treacherous  and  parricidal  hands,  it  protects 
tfie  citizen  from  that  vortex  of  constructive  and  exploded 
treasons,  v/hicli  has  engnlphed  in  bloody  and  premature  graves 
30  many  innocent  men.  "  To  prevent  the  possibility  of  those 
calamities  which  result  from  the  extension  of  treason  to  offences 
of,  minor  importimre.  (<i\ys>  Chief  .Justice  Marshall,)  that  great 
fundamental  la\  defiries  and  limits" the  various  depart- 

ments of  our  gOv . ,  ,i;i:c.it,  has- given  a  rule  on  thesuhject  both  , 
to  the  Legislature  and  the  Coxirts  of  America,  which  neither  ^ 
can  be  permitted  to  nd.-'     With  this  limitation  upon 

charges  of  treason, ;;  jperienco  of  that  rational  freedom 

ostablishe.d  by  the  Cun.stituiion  of  tlie  State,  came  more  liberal 
views  in  relation  to. the  inferior  crimes  of  its  cla-ss.  Mis- 
prision of  treason  has  entirely  disappeared  fro?n  the  statute 
book  of  the  State.  It.  is  found  in  that  of  the  United  States, 
covering  only  a  single  offer! ce,  according  to  its  literal  meaning, 
that  of  concealing  ai]d  not  disclosing  and  making  known  to 
the  public  authorities^  the  commission  of  any  treason  that  may 
come  to  the  knowledge  of  the  person  charged.  Sedition  is 
found  in  our  Tievised  Code,  as  the  heading  of  a  particular 
offence,  that  of  exciting -slaves  to  insurrection.  In  this  con- 
nection, it  is  a  salutary  part  of  our  law  according  with  public 
sentiment,  and  can  be  executed  with  effect  wherever  an 
offender  may  be  found.  Tliis  was  abundantly  proved  in  the 
case  of  Daniel  Wortli,  and  of  others.  This  law  applies  to 
attempts  to  excite  rebellion  in  a  degraded  caste  in  onr  sociel^ , 
wholl}^  devoid  of  all  political  power. 

But  among  freemen,  every  one  of  whom  is  equal,  in  con- 
sultation and  at  the  ballot-box,  if  restraints  upon  the  fredoiii 
of  speech  and  of  the  press  may  be  imposedj  beyond  those 
provided  by  the  colnmon  law,  it  has  never  beeri  found  neces- 
sary to  call  them  into  operation  heretofore.  There  seems  to 
have  been  a  srenerai  acquiescence  in  tlie  doctiiucs  of  Jeffer- 
son in  his  inaugural  address.  "If  tliere  be  any  among  us  who 
would  wish  to  dissolve  this  Union  ''Oonfederacy]  or  to  change 
its'  republican  form,  let  them' stand  undisturbed  as  monuments 
of  the  safety  with  which  error  of  opinion   may  be  tolerated, 


26 

wliero  reason  i.s  left  free  to  combat  it."  I  have  myself  been 
accustomed  to  associate  statutes  of  sedition  with  tli'ose  indict- 
ments for  seditious  libel,  where  there  were  attempts  to  screen 
corruption,  imt)ecility,  favoritism,  and  the  insolence  of  office, 
b}^  criminal  prosecutions  against  persons  who  exposed  them, 
and  when  the  gallantry  of  Erskine,  Curran,  and  other  advo- 
cates at  the  Knglish  and  Irislr  bar  won  immortal  names  in 
wrestling  with  a  domineering  and  sn-bservient  bench,  that 
never  forgot  the  hand  that  elevated  it  above  the  people,  nor 
its  fav()!-ires,  and  prevailing  in  tiie  contest.  I  have  been 
accustomed  to  look  upon  them  as  bringing  into  active  employ- 
ment, if  not  producing,  a  vile  race  of  parasites  and  sycophants, 
Titus  OatesesJ,  Bedloes,  etc.^  thronging  the  gates  of'  office  aiid 
patronage,  in  the  character  of  spies  and  injbrmers,  ready  to 
discover  Meal-tub  plots  and  Rye-honse  plots  of  the  most  direful 
import,  and  to  accuse  any  man,  whom  it  miglit  be  desirable  t"0 
hunt  dcTwn  and  destroy.  You  propose  by  Vhe  lirst  section  of 
this  ordinance,  to  create  nine  indictable  offences,  every  one 
of  which  is  described  in  a  manner  so  loose  and  nndelined,  as 
to  hold  out  the  greatest  temptations  to  malignant  accusers,  and 
to  produce  neighboi-hood  strifes  without  end.  I  shall  not 
detjiin  the  Convention  by  a  recital  of  them.  Their  counter- 
part maj  be  found  in  the  misprisions  against  the  King's  person 
and  government,  which  Blackstone  says  may  be  ''  by  speaking 
or  writing  against  them,  cursing  or  wishing  him  ill,  giving  out 
scandalous  stories  concerning  him,  or  doing  anything  that  may 
tend  to  lessen  him  in  the  esteem  of  his  subjects;  may  weaken 
his  government,  or  may  raise  jealousies  between  him  and  his 
people.''  Under  this  it  has  been  at  different  times  held 
indictable,  to  say  of  the  King  that  he  had  a  cold,  at  a  time 
when  his  services  were  important  in  the  Held — also,  to  say  of 
him  falsely,  that  he  labored  under  mental  deiangement— or 
to  drink  to  the  pious  memory  of  a  traitor,  or  for  a  clergyman 
to  absolve  persons  at  the  gallows  who  there  persist  ^!n  the 
treasons  for  which  they  die,  iSzQ.  4.  Black.  Com.  123.  Sir,  the 
whole  doctrine  is  nnsuited  to  our  free  institutions.  It  is  founded 
on  the  supposition,  that  force,  compulsion,  is  the  only  means 
of  upholding  government,  even  to  excite  love  for  it — and  that 
public  opinion  is  nothing,  and  must  be  subordinated  by  it. 
We  have  sufficient  law  now  to  afford  all  the  security  needed, 
if,  as  no  one  doubts,  public  sentiment  is  with  i>s,  and  will  enable 
us  to  enforce  it — and  if  it  is  nor,  no  new  statutory  enactment 
will  be  enforced.  Tlie  common  law  of  riot,  rout,  unlawful 
assembly,  and  conspiracy  enable  you  to  take  hold  of  any 
parties  whose  guilt  may  be  dangerous;  and  the  doctrine  of 
seditious  libel  is  the  same  now  that  it  was  in  1802  when  Harry 


27 

Crosswell  was  convicted  of  a  libel  on  President  Jefferson- 
except  that  the,  truth  of  the  matter  published  is  a  defence. 
Over  and  above  this,  every  section  of  tlie  State  is  accessible 
on  brief  notice  by  Rr.il road,  and  the  miliary  power  may  be 
exerted  with  effect  on  the  iirst  appearance  of  insurrection. 

But,  Sir,  the  whole  scope  of  tliis  ordinance  is  togivu  proper 
defence  and  protection  to  the  Confederate  States.  There  are 
a  few  expletives  t'  rown  in,  in  which  the  State  is  mentioned, 
but  they  seem  only  designed  to  till  out  a  sentence,  and  give 
roundness  to  a  period.  Kow  what  busines  is  it  of  ours  to  pass 
a  law  to  punish  sedition  against  the  Confederate  States  any 
more  than  to  punish  the  robbery  of  its  treasury  or  post-t.ffic  , 
or  piracy  again.^t  its  ships  on  the  sea?  If  there  is  to  be  such 
a  crime  as  sedition  against  that  govt  rnment,  ought  it  n(»t  to 
be  a  general  crime,  punishable  in  Virginia,  Tennessee,  Ken- 
tucky and  other  States  ?  And  has  not  that  government  a  Con- 
gress now  in  session  for  the  third  or  fourth  time?  Is  it  sup- 
posed that  we  are  wiser  than  they,  and  are  to  usurp  their 
lunctions?  If  that  Congress  has  the  same  propensity  to  copy- 
that  prevails  here,  they  need  only  turn  to  the  administrati'.n 
of  the  elder  Adams,  and  re-enact  the  sedition  law  of  that 
day,  referred  to  by  the  gentleman  from  Richmond,  (Mr.  Leak.) 
It  is  a  very  well  drawn  statute,  much  better  than  this  oidi- 
nance.  I  say  this  without  disrespect  to  the  committee,  for 
they  only  profess  to  copy  from  the  act  of  1777.  The  gentle- 
man from  Richmond  made  a  slight  error  in  supposing  this  waa 
the  same  with  the  sedition  law  of  1798.  It  is  intinitely  worse. 
Judge  Chase  had  decided  and  correctly  too,  that  there  was  no 
law  of  the  United  States  except  what  was  enacted  by  statute, 
and  therefore  that  there  was  no  law  of  libel  to  protect  its 
officers  from  the  President  downward  against  any  defamation 
whatever.  The  act  was  consequently  passed  to  punish  by 
indictment  libellous  publications  against  them,  which  would 
be  indictable  if  made  against  other  persons  by  the  common 
law— allowing,  however,' the  truth  to  be  given  in  evi<lence  as 
a  defence.  Yet,  so  distasteful  was  it  to  the  public  mind,  and 
so  odious  did  it  render  its  authors,  that  after  a  lapse  of  half  a 
century,  vhen  all  other  party  issues  of  that  time  are  forgotten, 
it  still  remains  in  public  recollection.  But  as  a  restriction  on 
liberty,  the  liberty  of  the  press  and  of  speech,  it  was  as 
nothing  compared  with  this  act,  which  has  been  exhumed 
from  the  oblivion  in  which  it  has  lain  for  eighty-odd  years, 
and  which  it  is  proposed  to  revivify,  just  as  it  was  on  the  day 
of  its  first  enactment.  At  that  time  the  doctrine  prevailed 
here  as  well  as  in  the  mother  country,  of  '•  the  greater  I  he 
truth  the  greater  the  libel."     So  that  if  any  man  ''shall  pub- 


28 

-lisli  and  deliberately  speak  or  write  against  our  pwblic  defence,'^ 
(this  is  one  of  the  ottences  it  creates)  no  matter  how  trite  may 
be  tl]e  words  written  or  spoken,  snch  as  that  a  commanding 
(reneral  iied  in  ■I'.^i'ionsly  from  a  Held  of  battle,  Mdu'ii  \ici-(>rv 
was  vv'iihiii  '  ,  or  that  from  his  incompetei] 

■iced  half  ],.-.•.  ^^  :nnand  \^  itkont  any  conceiviti'^e  '-^^j^-ci, 
althoni!;li  it  may  be  evavy  vvord  true,  the  party  who  wrote  or 
sppke  thus,  mntt  '  Icied. 

If  the   Congr:  o  Confederate  States  desires  to   ti'v 

over  again  the  experiment  of  a  Sedition  Law  of  179S,  or  to 
go' back  beyond  it,  and  re-copy  old  penal  statutes  made  to  put 
■down  Papacy,  or  uphold  the  prerogatives  of  royalty,  ihi.-  way 
is  perfocily  open  to  them.  But  lot  us  not  render  ourfielves  ;i 
subject  of  merriment,  by  taking  better  care  of  that  govern- 
ment tliau.  it  takes  of  itself.  Let  us  not  stigmatize  our  people 
by  ^singling  them  out  as  peculiar  subjects  for  the  operation  of 
laws  of  this  kin('  us  not   give  just  cause  of  ofauico  to 

them,  l)y.shov.'iii.  .  rust  of  that  elevated  patriotism  nnd 
linanipiUty  with  which  tiiey  ai-e  sustaiLiug  their  country  in 
*''._■■  li:  :■  h>inrrvr  ^vl.V  ^  .--■  n^'  iibandon  ihis  m^:^-''^<'i' ''^ 'y-'^ '■><■]■ 
iub,  ,  -ive  and  unjust. 

and  ij:tv-_.  u..  ''•■  ^:./^' '^^'^ .  posh:-'/' 


^PPEIsTDIX:. 


lilE   ^OLLO^VI]^it    is    -niE   OEDINA^-CE,   PRF.6ENTL-D    T.Y    ^sU:.    illHCS, 
C.'F   ^ir^RTIX,  CHAIEMAX    OF   THE   COiMMITTEE  : 

.  ^-  ATs^  OPvDINAXCE 

To  define  and  ^>?r?m/i.  Scdiiion^  and^io  i^vtvcnt  the  dartguc 
which  may  arise  from  j>crf!07is  disaJfccM  to  the  State. 

Be  it  ordained^  That  if  any  person  within  this  State  sliall 
attempt  to  convey  intelli^nce  to  tlie  enemies  of  tlie  Confed- 
erate States,  or  shall  pubhsli  and  dc]ii)erately  speak  or  write 
ag-ainst  our  pfibh'c  defence  :  or  shall  maliciously  and  advisedlv 
endeavor  to  excite  the  people  to  resist  the  "^Government  oi 
Ihis  State  or  of  the  Confederate  States ;  or  persuade  them  t(* 
return  to  a  dependence  on  the  Government  of  the  United 
States  ;  or  sliall  knowingly  spread  ialse  and  dispiriting  news  : 
or  malicious!}^  or  advisedly  terrify  and  discourage  the  people 
from  enlisting  into  the  service  of  this  State  or  of  the  Confedei- 
ate  States;  or  shall  stir  up  or  excite  tumults,  disorders,  or 
lasurrections  ifi  this  State  ;  or  dispose  the  people  to  favor  the 
enemy  ;  or  oppose  or  endeavor  to  prevent  the  measures  car- 
rying on  in  support  of  the  freedom  and  independence  of  the 
said  Confederate  States;  every  such  person  being  thereof 
legally  convicted  by  the  evidence  of  two  or  more  credible 
witnesses,  or  other  sufficient  testimony,  shall  be  adjudge'l 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  and  impris- 
oned at  the  discretion  of  the  conrt,  and  shall  enter  into  recog- 
nisance with  good  surety,  in  such  sum  as  the.  court  may  deem 
proper,  to  be  of  the  peace  and  good  behavior  towaid  all 
people  in  the  State  for  three  years  thereafter. 

2d.  Any  Judge  or  Justice  of  the  Peace  on  complaint  to  him 
made  on  the  oath  or  affirmation  of  one  or  more  credible  per- 
son or  persons,  shall  cause  to  be  brought  before  him  any 
otfender  against  the  provisions  of  this  ordinance,  who  shall 
enter  into  recognisance  with  sufficient  surety  to  be  and  appear 
at  the  next  county  court  of  the  county  wherein  the  offence 
was  committed,  and  abide  the  judgment  of  said  court ;  and 
in  the  meantime,  to  be  of  the  peace  and  good  behavior  to  all 


30 

people  within  the  State  ;  and  for  the  want  of  such  surety,  the 
said  Judge  or  Justice  shall  commit  such  offender  to  the  jail  of 
the  county. 

3d.  It  shall  be  the  duty  of  eveiy  free  male  person  in  this 
State  above  sixteen  years  of  age,  (voluiiteers  mustered  into 
the  service  of  the  State  or  of  the  Confederate  States,  persons 
non  compos  mentis  and  prisoners  of  war  only  excepted,)  before 
some  court  or  otiicer  authorized  to  administer  oaths,  to  take 
the  following  oath  or  atfirmation  : 

*'  I,  A  B,  do  solemnly  swear  (or  athrm  as  the  case  may  be) 
that  I  will  bear  faithful  and  true  allegiance  to  the  State  of 
North- Carol  in  a,  and  will  to  the  utmost-^of  my  power,  support, 
maintain  and  defen^l  the  independent  government  of  the 
Confederate  States  of  America  against  the  government  of  the 
United  States,  or  an}^  other  powei%  that  hj  open  force  or 
otherwise  shall  attempt  to  subvert  "the  same.  I  do  hereby 
renounce  all  allegiance  to  the  government  of  the  United 
States,  and  I  will  support  and  defend  the  Constitution  of  the 
Confederate  States  of  America  and  the  Constitution  of  this 
State  not  inconsistent  with  the  Constitution  of  the  Contederate 
States,  so  help  me  God." 

And  it  shall  be  the  duty  of  every  officer  administrating 
such  oath  to  certify  under  his  hand  and  seal  to  the  next  county 
court  which  may  be  held  in  the  county  where  the  jurors  or 
atHrinants  reside,  the  names  of  all  persons,  who  have  taken 
the  oath  before  him,  which  certificate  shaR  be  recorded  by 
tlio  clerk  of  the  county  court  in  a  book  to  be  kept  for  that 
purpose. 

4th.  Every  male  person  as  aforesaid  who  shall  fail  or  neglect 
to  take  the  said  oath  or  affirmation  on  or  before  the  first  day 
of  Jaiiuary  next,  may,  by  any  Justice  of  tlie  Peace  of  his 
county,  be  cited  to  appear  before  the  county  court  to  take  the 
same  ;  and  if  any  person  thus  cited  shall  fail  to  attend,  or 
attending  at  the  time  and  place,  as  he  shall  have  been  thus 
warned,  shall  refuse  to  take  the  oath  or  atfirmation,  (except 
excused  by  sickness,  unavoidable  necessity,  or  other  sufficient 
reasons  to*  be  adjudged  of  by  the  next  county  court,)  shall  bo 
ordered  by  the  said  county  court  to  take  the  said  oath  or  quit 
the  State,  and  depart  out  of  the  Confederate  States  within 
thirty  days  thereafter.  P>omded  ho'toever^  That  the  county 
court  may,  in  tlieir  discretion,  permit  a  person  failing  as  afore- 
said, to  remain  in  the  State. 

5th.  If  snch  person  shall  be  permitted  to  remain  in  the 
State,  he  shall  be  adjudged  incapable  and  disabled  in  law  to 
have,  occupy,  or  enjoy  any  office,  appointment,  license,  or 
election  of  trust  or  profit,  civil  or  military,  within  this  State, 


31 

and  shall  not  be  capable  of  being  elected  to,  or  aiding  bj^  his 
vote  to  be  a  member  of  Assembly,  Governor,  or  any  other 
officer;  and  if  any  person  shall  be  directed  to  depart  ont  of 
the  Confederate  States,  and  shall  not  quit  the  State  within 
thirty  days,  then  such  person  may  be  apprehended  by  the 
warrant  of  any  Judge  or  Jnstice  of  the  Peace  in  this  State 
(wlior^e  dnty  it  shall  be  to  issue  such  wa-rant)  and  shall  be 
brought  before  the  county  court,  where  the  order  was  made, 
and  the  saia    conrt 


I,  in  such  case,  send  the  person  so 
offending,  as  speedily  as  may  be,  out  of  the  Confederato 
Sfates,  at  ihe  costs  and 'charges  of  such  offender  (if  he  has  the 
means  to  payTlie  same,)  and  to  this  end  shall,  and  may  direct 
the  Cleils:  ot*  tl^cnuri  to  ;>snc  an  order  to  any  Sheriff'  in  the 
State  to  seiz(*  and^sftll^so  much  of  the  goods  and  chattels, 
lands  and  tenements  or"  §u6hij)erson  in  his  county  as  may  bo 
judged  nvcessary  by  saidfc<Si^>t  \n  defray  the  costs  and  charges, 
t<tgerher  with  the  costs  and  charges  of  apprehending  and 
confining  such  persou  untij  lijashall^be  sent  ont  of  the  Confed- 
erate Stares;  and  such  shwitf  shall  execute  proper  convoy- 
ances  for  any  pro})erty  so  sold,  and  return  the  money  arising 
by  any  sale  tnade  by  virtue  of  Such  §rder,  afier  deducting  his 
fees  and  commissions  as  in  other  cases,  to  the  next  county 
court  of  rlie  county  whence  such  order  issued,  under  the  pen- 
airy  of  five. hundred  dollars,  to  be  recovered,  upon  motion 
against  tii^*  islierifl*  andlii's  sureties,  by  the  county  Solicitor 
for  the  iise  of  the  county,  after  ten  da^s  notice  ;  and  if  any 
surplus  shall  remain  after  p^'ing  all  ©osts  and  cliarges  as 
aforesaid,  the  county  court  shall  cause  such  surplus  to  be  paid 
to  the  owner.  • 

f)th.  If  any  person  st> departing  or  sent  off  from  this  State 
sh:ill  return  to  the  same,  then  such  person  shall  be  adjudged 
guilty  of  treason  against  th^'State,  and  shall,  and  may  be, 
proccjded  against  in  like  manner  as  directed  in  case  of  treason. 

7th.  This  Ordinance  in  ay  J)  e"  modified  or  j^epealed  by  the 
General  Assembly — shall  take.efioct  at  the  (htta  of  its  ratifi- 
cation, and  be  published  by  the  Secretary  of  "State  as  soon  as 
practicable  thereafter,  in  on e-^if- there  be  one)  newspaper  in 
each  Congressional  District,  and' at  eacl^Court  IJouse  in  the 
several  counties  of  the  State. 


'tfin 


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Hollinger  Corp. 
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